(a) Waiver of Counsel. Any waiver of counsel shall be in open
court. The court shall not permit a waiver of counsel by a person
accused of an offense punishable by imprisonment without first, by
addressing the defendant personally in open court, informing him of and
determining that he understands the following:

(1) the nature of the charge;

(2) the minimum and maximum sentence prescribed by law,
including, when applicable, the penalty to which the defendant
may be subjected because of prior convictions or consecutive
sentences; and

(3) that he has a right to counsel and, if he is indigent, to have
counsel appointed for him by the court.

(b) Transcript. The proceedings required by this rule to be in open
court shall be taken verbatim, and upon order of the trial court
transcribed, filed and made a part of the common law record.

Rule 401, as adopted in 1967 (36 Ill. 2d R. 401), covered (1) waiver of
indictment, (2) waiver of counsel, (3) pleas of guilty, and (4) the requirement
of representation by counsel in open court on a guilty plea or waiver of counsel
or waiver of indictment by persons under 18 years of age. In 1970, items (3)
and (4) were transferred to Rules 402 and 403 respectively (43 Ill. 2d Rules
402, 403), and waiver of counsel and waiver of indictment were separated into
separate lettered paragraphs (a) and (b), respectively (43 Ill. 2d R. 401(a), (b)),
in order to give a clearer and more specific statement of the requirements for
each type of waiver, since in a given case both waivers might not occur, or
might occur at different times. In 1975, the Code of Criminal Procedure of
1963 was amended to abolish the requirement of indictment, and in 1978, to
reflect this change, paragraph (b) of Rule 401 (58 Ill. 2d R. 401) was rescinded
and former paragraph (c) became the present paragraph (b).

With regard to waiver of counsel, the 1970 amendments made no major
change in substance, although they made explicit some requirements that were
only implicit in the rule as originally adopted. For example, Rule 401 as
originally adopted merely stated that the defendant must understand "the
consequences [of the charges against him] if found guilty" (36 Ill. 2d R.
401(b)), while paragraph (a)(2) defines these consequences. The definition is
the same as in Rule 402, paragraph (a)(2), concerning admonition of the
consequences when a plea of guilty is accepted. See the committee comments
to Rule 402.

Original Rule 401 (36 Ill. 2d R. 401), and Rule 401(a), as amended in
1970 (43 Ill. 2d R. 401(a)), required waiver of counsel only in cases in which
the defendant was accused of a crime punishable by imprisonment in the
penitentiary. In 1974, this paragraph of the rule was amended (58 Ill. 2d R.
401(a)) to conform to the decision of the Supreme Court of the United States
in Argersinger v. Hamlin (1972), 407 U.S. 25, in which it was held that no
imprisonment may be imposed, absent a knowing and intelligent waiver, unless
the defendant was represented by counsel at his trial.

The present paragraph (b) is derived from the last two sentences of
paragraph (b) of former Rule 401 (36 Ill. 2d R. 401).

In 1984 paragraph (b) was amended to require transcription of the
verbatim report of waiver proceedings only when ordered by the trial court.
This brings Rule 401(b) into line with Rule 402(e), which requires transcription
of guilty-plea proceedings in felony cases to be transcribed only when ordered
by the trial court.

In hearings on pleas of guilty, or in any case in which the defense offers to
stipulate that the evidence is sufficient to convict, there must be substantial
compliance with the following:

(a) Admonitions to Defendant. The court shall not accept a plea of guilty or a
stipulation that the evidence is sufficient to convict without first, by addressing the
defendant personally in open court, informing him or her of and determining that he or she understands the following:

(1) the nature of the charge;

(2) the minimum and maximum sentence prescribed by law, including, when
applicable, the penalty to which the defendant may be subjected because of prior
convictions or consecutive sentences;

(3) that the defendant has the right to plead not guilty, or to persist in that plea if
it has already been made, or to plead guilty; and

(4) that if he or she pleads guilty there will not be a trial of any kind, so that by
pleading guilty he or she waives the right to a trial by jury and the right to be
confronted with the witnesses against him or her; or that by stipulating the evidence
is sufficient to convict, he or she waives the right to a trial by jury and the right to be
confronted with any witnesses against him or her who have not testified.

(b) Determining Whether the Plea is Voluntary. The court shall not accept a
plea of guilty without first determining that the plea is voluntary. If the tendered plea
is the result of a plea agreement, the agreement shall be stated in open court. The
court, by questioning the defendant personally in open court, shall confirm the terms
of the plea agreement, or that there is no agreement, and shall determine whether any
force or threats or any promises, apart from a plea agreement, were used to obtain the
plea.

(c) Determining Factual Basis for Plea. The court shall not enter final judgment
on a plea of guilty without first determining that there is a factual basis for the plea.

(d) Plea Discussions and Agreements. When there is a plea discussion or plea
agreement, the following provisions, in addition to the preceding paragraph of this
rule, shall apply:

(1) The trial judge shall not initiate plea discussions. Upon request by the
defendant and with the agreement of the prosecutor, the trial judge may participate
in plea discussions. Prior to participating in the plea discussions, the trial judge shall
admonish the defendant and inquire as to the defendant’s understanding of the
following:

That the defendant’s attorney has requested that the trial judge participate in the
conference to determine whether or not the charge(s) which is/are pending against the
defendant can be resolved by a plea of guilty;

That during the course of the conference the prosecutor will be present and advise
the judge of the facts of the case as contained in the police reports or conversations
with witnesses, that the defendant’s attorney will also be present and will advise the
judge of any information the defendant may have concerning the circumstances
which led to the defendant’s arrest in the case.

That without the conference, the judge would not learn about this information
unless the case proceeded to trial.

That the judge will also learn whether the defendant has a prior criminal history,
his or her driving record, whether the defendant has any alcohol or drug problem, the
defendant’s work history, family situation, and other things which would bear on
what, if any punishment should be imposed upon the defendant as a result of his or
her plea of guilty to one or more of these charges.

That these are things that the judge would not learn about unless the case went
to trial and the defendant was found guilty.

That at the end of the conference, the judge may make a recommendation as to
what an appropriate sentence would be.

That the defendant or the prosecutor is free to accept or reject the judge’s
recommendation. However, if the defendant rejects the judge’s recommendation and
he or she wishes to have a trial on the charges, the defendant may not obtain another
judge solely on the basis that the judge participated in the conference and is aware
of the facts and circumstances surrounding the incident as well as the defendant’s
background. This means that the defendant will be waiving his or her right to request
a substitution of judge based upon the judge’s knowledge of the case.

That knowing all of these things the defendant still wishes that the judge
participate in this conference.

(2) If a tentative plea agreement has been reached by the parties which
contemplates entry of a plea of guilty in the expectation that a specified sentence will
be imposed or that other charges before the court will be dismissed, the trial judge
may permit, upon request of the parties, the disclosure to him or her of the tentative
agreement and the reasons therefor in advance of the tender of the plea. At the same
time hethe trial judge may also receive, with the consent of the defendant, evidence
in aggravation or mitigation. The judge may then indicate to the parties whether he or she will concur in the proposed disposition; and if hethe judge has not yet
received evidence in aggravation or mitigation, he or she may indicate that his or her concurrence is conditional on that evidence being consistent with the representations
made to him. If hethe judge has indicated his or her concurrence or conditional
concurrence, hethe judge shall so state in open court at the time the agreement is
stated as required by paragraph (b) of this rule. If the defendant thereupon pleads
guilty, but the trial judge later withdraws his or her concurrence or conditional
concurrence, hethe judge shall so advise the parties and then call upon the defendant
either to affirm or to withdraw his or her plea of guilty. If the defendant thereupon
withdraws his or her plea, the trial judge shall recuse himself or herself.

(3) If the parties have not sought or the trial judge has declined to give his or her concurrence or conditional concurrence to a plea agreement, hethe judge shall
inform the defendant in open court at the time the agreement is stated as required by
paragraph (b) of this rule that the court is not bound by the plea agreement, and that
if the defendant persists in his or her plea the disposition may be different from that
contemplated by the plea agreement.

(e) Transcript. In cases in which the defendant is charged with a crime
punishable by imprisonment in the penitentiary, the proceedings required by this rule
to be in open court shall be taken verbatim, and upon order of the trial court
transcribed, filed, and made a part of the common law record.

(f) Plea Discussions, Plea Agreements, Pleas of Guilty Inadmissible Under
Certain Circumstances. If a plea discussion does not result in a plea of guilty, or if
a plea of guilty is not accepted or is withdrawn, or if judgment on a plea of guilty is
reversed on direct or collateral review, neither the plea discussion nor any resulting
agreement, plea, or judgment shall be admissible against the defendant in any
criminal proceeding.

JUSTICE BURKE, concurring in part and dissenting in part:
The court’s amendments to Supreme Court Rule 402, effective July 1, 2012, formally authorize a judge to participate in plea discussions upon the request of a defendant and following proper admonishments. While I am in agreement with this change as a general matter, I am concerned that the amendments do not include an explicit allowance for a defendant’s participation in the plea conference.

The Rule 402 conference is intended to be an open negotiating process, where all relevant information regarding the defendant will be discussed. The majority of these conferences, however, will involve a public defender, who simply cannot possess the level of personal information known to the individual defendant. The defendant will always have relevant information to bring to the conference and should be able to do so.

The admonishments contained in the amendments should include a statement that the defendant has the right to be present and to speak during the plea conference. Because this provision is not included in the amendments, I respectfully dissent.

JUSTICE FREEMAN joins in this partial concurrence and partial dissent.

Committee Comments

(Revised May 1997)

The procedure on pleas of guilty was previously dealt with briefly in
former Rule 401, paragraph (b). More extended and specific treatment of this
subject is now required for at least two reasons. For one, the Supreme Court of
the United States has recently held that it is a violation of due process to accept
a guilty plea in State criminal proceedings without an affirmative showing,
placed on the record, that the defendant voluntarily and understandingly entered
his plea of guilty. (Boykin v. Alabama (1969), 395 U.S. 238.) For another,
increased attention has recently been given to the long-standing practice of
pleading guilty as a consequence of a prior agreement between the prosecution
and defense concerning the disposition of the case; it is generally conceded that
"plea discussions" and "plea agreements" are often appropriate, but that such
procedures should not be concealed behind an in-court ceremony at which the
defendant sometimes seems to think that he is expected to state falsely that no
promises were made to him. (See American Bar Association Project on
Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty
(Approved Draft 1968); Enker, Perspectives on Plea Bargaining, in The
President's Commission on Law Enforcement and Administration of Justice,
Task Force Report (1967): The Courts.) Two major objectives of new Rule 402
are: (1) to insure compliance with the Boykin requirements; and (2) to give
visibility to the plea-agreement process and thus provide the reviewing court
with a record containing an accurate and complete account of all relevant
circumstances surrounding the guilty plea. See United States v. Jackson (7th
Cir. 1968), 390 F.2d 130.

Paragraph (a) sets forth the admonitions which must be given to the
defendant to insure that his guilty plea is intelligently and understandingly
made, as required by Boykin. Subparagraph (1) requires that the defendant be
informed of the nature of the charge, as now also required by section 113--1 of
the Code of Criminal Procedure of 1963. Subparagraph (2) requires that the
defendant also be informed of the minimum and maximum sentences prescribed
by law; this deviation from section 113--4(c) of the Code, which only expressly
requires explanation of the "maximum penalty provided by law," is based upon
the assumption that notice of both the minimum and maximum will give the
defendant a more realistic picture of what might happen to him. (See ABA
Standards Relating to Pleas of Guilty 28 (Approved Draft 1968).)
Subparagraphs (3) and (4) cover the requirements enumerated in Boykin,
namely, that the record on a guilty plea affirmatively show a waiver of "three
important federal rights": the privilege against self-incrimination; the right to
trial by jury; and the right to confront one's accusers.

The 1997 amendment was added to require that admonitions be given in
cases in which the defense offers to stipulate to the sufficiency of the evidence
to convict. See People v. Horton, 143 Ill. 2d 11 (1991).

Paragraph (b) requires a determination that the guilty plea is voluntary by
inquiry of the defendant as to whether any force or threats or promises were
made to him. This is now accepted practice, see, e.g., People v. Darrah (1965),
33 Ill. 2d 175, 210 N.E.2d 478, although not expressly required by Code
section 113--4. In contrast to current practice, paragraph (b) also requires that
if the tendered plea is the result of a plea agreement, then the agreement must
be stated in open court. It is important to give visibility to the plea-agreement
process in this way, as otherwise the defendant may feel required to state
falsely that no promises were made and the plea may later be subject to
collateral attack.

Paragraph (c) requires that the court determine there is a factual basis for
the plea. Such inquiry is not uncommon in current practice, but heretofore has
not been specifically required by law. The language of paragraph (c) is based
upon the recent revision of Rule 11 of the Federal Rules of Criminal Procedure,
and, as is true under the Federal rule, no particular kind of inquiry is specified;
the court may satisfy itself by inquiry of the defendant or the attorney for the
government, by examination of the presentence report, or by any other means
which seem best for the kind of case involved. For a statement of the value of
such a procedure, see ABA Standards Relating to Pleas of Guilty 30-34
(Approved Draft 1968).

Underlying paragraph (d), concerning plea discussions and plea
agreements, is the notion that it is sometimes permissible for a defendant to
plead guilty pursuant to a prior agreement that the prosecution will obtain, seek,
or not oppose a certain disposition. For one assessment of various reasons upon
which such practices may be legitimately based, see ABA Standards Relating
to Pleas of Guilty 36-52 (Approved Draft 1968).

Under subparagraph (d)(2), the judge, if he considers it appropriate, may
be advised, in advance of the plea, of the tentative plea agreement and indicate
his conditional concurrence or (if, with consent of the defendant, he then
receives evidence in aggravation or mitigation) concurrence. Such concurrence
or conditional concurrence is to be stated for the record when the plea is
received, but if the judge later determines before sentencing that a more severe
disposition is called for he must so advise the defendant and give him an
opportunity to withdraw the plea. If the defendant does withdraw his plea under
these circumstances, it would be inappropriate for the same judge to be
involved in the trial of the case, so he is required to recuse himself. If, however,
the defendant elects not to withdraw his plea, the judge is not required to recuse
himself. Under subparagraph (3), where there is a plea agreement but no
concurrence or conditional concurrence by the judge (either because the parties
have not sought it or the judge has declined to give it), the judge is required to
advise the defendant that he is not bound by the agreement stated in court at the
time of the plea. This caution will remove any possibility of an inference by the
defendant that the judge's awareness of the agreement indicates concurrence in
it. See People v. Baldridge (1960), 19 Ill. 2d 616, 169 N.E.2d 353.

Paragraph (e) is derived from former Rule 401. It was amended in 1981
to leave within the court's discretion the question of whether the proceedings
shall be transcribed. The requirement that they shall be taken verbatim remains.

Paragraph (f) adopts the prevailing view that once a guilty plea has been
annulled by withdrawal or other means, it should not be subsequently
admissible against the defendant in criminal proceedings. (See People v.
Haycraft (1966), 76 Ill. App. 2d 149, 221 N.E.2d 317.) It follows that a plea
discussion which has not resulted in a still-effective guilty plea should likewise
be inadmissible, for otherwise defendants could engage in plea discussions only
at their peril.

In proceedings to revoke probation, conditional discharge or supervision in which the defendant admits to a violation of
probation, conditional discharge or supervision, or offers to stipulate that the evidence is sufficient to revoke probation, conditional
discharge or supervision, there must be substantial compliance with the following.

(a) Admonitions to Defendant. The court shall not accept an admission to a violation, or a stipulation that the
evidence is sufficient to revoke, without first addressing the defendant personally in open court, and informing the defendant of and
determining that the defendant understands the following:

(1) the specific allegations in the petition to revoke probation, conditional discharge or supervision;

(2) that the defendant has the right to a hearing with defense counsel present, and the right to appointed
counsel if the defendant is indigent and the underlying offense is punishable by imprisonment;>

(3) that at the hearing, the defendant has the right to confront and cross-examine adverse witnesses and to
present witnesses and evidence in his or her behalf;

(4) that at the hearing, the State must prove the alleged violation by a preponderance of the evidence;

(5) that by admitting to a violation, or by stipulating that the evidence is sufficient to revoke, there will
not be a hearing on the petition to revoke probation, conditional discharge or supervision, so that by admitting to a
violation, or by stipulating that the evidence is sufficient to revoke, the defendant waives the right to a hearing and the
right to confront and cross-examine adverse witnesses, and the right to present witnesses and evidence in his or her behalf;
and

(6) the sentencing range for the underlying offense for which the defendant is on probation, conditional
discharge or supervision.

(b) Determining Whether Admission Is Voluntary. The court shall not accept an admission to a violation, or a
stipulation sufficient to revoke without first determining that the defendantís admission is voluntary and not made on the basis of
any coercion or promise. If the admission or tendered stipulation is the result of an agreement as to the disposition of the
defendantís case, the agreement shall be stated in open court. The court, by questioning the defendant personally in open court, shall
confirm the terms of the agreement, or that there is no agreement, and shall determine whether any coercion or promises, apart from an
agreement as to the disposition of the defendantís case, were used to obtain the admission.

(c) Determining Factual Basis for Admission. The court shall not revoke probation, conditional discharge or
supervision on an admission or a stipulation without first determining that there is a factual basis for the defendantís admission or
stipulation.

(d) Application of Rule 402. The provisions of Rules 402(d), (e), and (f) shall apply to proceedings on a petition
to revoke probation, conditional discharge or supervision.

A person under the age of 18 years shall not, except in cases in
which the penalty is by fine only, be permitted to enter a plea of guilty
or to waive trial by jury, unless he is represented by counsel in open
court.

This rule is derived from former Rule 401, paragraph (c). The only change
in substance is the insertion of the phrase "except in cases in which the penalty
is by fine only," qualifying the requirement of representation by counsel when
a person under 18 enters a plea of guilty or waives jury trial. This change
conforms to section 113--5 of the Code of Criminal Procedure of 1963.

(a) Contents. An Application for
Waiver of Court Assessments in a criminal action pursuant to 725 ILCS 5/124A-20
shall be in writing and signed by the applicant or, if the applicant is a minor
or an incompetent adult, by another person having knowledge of the facts. The
Application should be submitted no later than 30 days after sentencing.

(1) The contents of the Application must be sufficient to allow
a court to determine whether an applicant qualifies for a full or partial
waiver of assessments pursuant to 725 ILCS 5/124A-20 and shall include
information regarding the applicant’s household composition, receipt of
need-based public benefits, income, expenses, and nonexempt assets.

(2) Applicants shall use the “Application for Waiver of Court
Assessments” adopted by the Illinois Supreme Court Access to Justice
Commission, which can be found in the Article IV Forms Appendix.

(b) Ruling. The court shall either
enter a ruling on the Application or shall set the Application for a hearing
requiring the applicant to appear in person. The court may order the applicant
to produce copies of certain documents in support of the Application at the
hearing. The court’s ruling on an Application for Waiver of Assessments shall
be made according to standards set forth in 725 ILCS 5/124A-20. If the
Application is denied, the court shall enter an order to that effect specifying
the reasons for the denial. If the court determines that the conditions for a
full assessment waiver are satisfied under 725 ILCS 5/124A-20(b)(1), it shall
enter an order waiving the payment of the assessments. If the court determines
that the conditions for a partial assessment waiver under 725 ILCS
5/124A-20(b)(2) are satisfied, it shall enter an order for payment of a
specified percentage of the assessments. If an Application is denied or an
Application for a partial assessment waiver is granted, the court may allow the
applicant to defer payment of the assessments, make installment payments, or
make payment upon reasonable terms and conditions stated in the order.

(c) Filing. No fee may be charged
for filing an Application for Waiver of Court Assessments. The clerk must allow
an applicant to file an Application for Waiver of Assessments in the court
where his case will be heard.

(d)
Cases involving representation by criminal legal services providers or
attorneys in court-sponsored pro bono program. In any case where a party is represented by a criminal legal
services provider or an attorney in a court-sponsored pro bono program, the attorney representing that party shall
file a certification with the court, and that party shall be allowed to proceed
without payment of assessments as defined in 725 ILCS 5/124A-20(a) without
necessity of an Application under this rule. “Criminal legal services provider” means a not-for-profit
corporation that (i) employs one or more attorneys who are licensed to
practice law in the State of Illinois and who directly provide free criminal
legal services or (ii) is established for the purpose of providing free
criminal legal services by an organized panel of pro bono attorneys. “Court-sponsored pro bono program” means a pro bono program established by or in partnership with a court in this State for the
purpose of providing free criminal legal services by an organized panel of pro bono attorneys.

Adopted Feb. 13, 2019, eff. July 1, 2019.

Committee Comments

The Application
for Waiver of Court Assessments form referenced in subparagraph (a)(2) of this
rule will be promulgated before its July 1, 2019, effective date.

These rules shall be applied in all criminal cases wherein the accused is charged
with an offense for which, upon conviction, he might be imprisoned in the
penitentiarya felony, and all juvenile delinquency cases wherein the accused is
charged with an offense that would be a felony if committed by an adult. If the
accused is charged with an offense for which, upon conviction, he might be
sentenced to death, these rules shall be applied to the separate sentencing hearing
provided for in section 9-1(d) of the Criminal Code of 1961 (720 ILCS 5/9-1(d)). They shall become applicable following indictment or information or petition for
adjudication of wardship and shall not be operative prior to or in the course of any
preliminary hearing.

Effective October 1, 1971; amended March 1, 2001, effective immediately, except
when in the opinion of the trial, Appellate, or Supreme Court the application of the
amended provisions in a particular case pending at the time the amendment becomes
effective would not be feasible or would work an injustice, in which case former
procedures would apply; amended December 9, 2011, effective immediately.

Committee Comments

Special Supreme Court Committee on Capital
Cases

March 1, 2001

Rule 411, as amended, makes criminal discovery rules applicable to the
sentencing hearing in a capital case. A capital sentencing hearing is a unique
and complex proceeding, which often takes place immediately following trial on
the merits. Allowing pretrial discovery for capital sentencing will assist
counsel in preparing for this critical stage of a capital trial and prevent
delay and disruption of the sentencing hearing. See also Rule 416(c) (pretrial
notice of aggravating factors the State will rely upon in sentencing).

The amendment to Rule 411 does not create new forms of discovery. Instead,
the amendment extends the application of existing discovery methods to capital
sentencing hearings. The committee notes that any discovery rule that requires
disclosure by the defense is subject to constitutional limitations and
limitations based on attorney-client or other privilege. Existing discovery
rules expressly mention constitutional limitations on defense disclosures (see, e.g.,
Rule 413) and provide that attorney work product is not subject to disclosure by
the State or the defense (Rule 412(j)).

The committee found that the existing discovery rules and associated case law
would adequately address constitutional and privilege-based objections to
pretrial disclosure of sentencing information by the defense. However,
constitutional and privilege-based limitations on discovery do not preclude the
possibility that pretrial disclosure of defense sentencing information could
directly or indirectly aid the State's case on the merits. The extension of
discovery procedures to capital sentencing is not intended to provide such an
advantage to the State.

In the event the defense objects to disclosure of specific sentencing
information on the ground that disclosure would harm the defense case on the
merits, the trial court should take any action necessary to prevent that harm.
Options available to the trial court include excision of objectionable material
pursuant to Rule 415(e) and the use of protective orders to defer disclosure or
restrict the use of information disclosed (Rule 415(d)). In camera review of a claim of potential harm from disclosure of sentencing information
(Rule 415(f)) may be appropriate to prevent disclosure of defense theories or
strategy, or where the identity of a defense sentencing witness is unknown to
the State

Committee Comments

To avoid confusion, the committee rejected the ABA standard which
called for the application of discovery rules in "all serious criminal cases." No
such standard exists in Illinois, and the application of the discovery rules is
extended to all offenses carrying a possible penalty of penitentiary
imprisonment. The use of the extensive discovery procedures prescribed in
these rules at preliminary stages of the criminal trial would serve no valid
purpose, and their use is confined to post-indictment procedures. The
committee considered but unanimously declined to make the rules applicable
in juvenile court proceedings since the nature of such proceedings generally
does not require discovery rules. However, if such proceedings become more
adversary in nature, it may be desirable or necessary to apply the rules to them
at some future date. In any event, the requirements of In re Gault (1967), 387
U.S. 1, must be met.

(a) Except as is otherwise provided in these rules as to matters not
subject to disclosure and protective orders, the State shall, upon written
motion of defense counsel, disclose to defense counsel the following
material and information within its possession or control:

(i) the names and last known addresses of persons whom the
State intends to call as witnesses, together with their relevant
written or recorded statements, memoranda containing
substantially verbatim reports of their oral statements, and a list of
memoranda reporting or summarizing their oral statements. Upon
written motion of defense counsel memoranda reporting or
summarizing oral statements shall be examined by the court in
camera and if found to be substantially verbatim reports of oral
statements shall be disclosed to defense counsel;

(ii) any written or recorded statements and the substance of any
oral statements made by the accused or by a codefendant, and a list
of witnesses to the making and acknowledgment of such
statements;

(iii) a transcript of those portions of grand jury minutes
containing testimony of the accused and relevant testimony of
persons whom the prosecuting attorney intends to call as witnesses
at the hearing or trial;

(iv) any reports or statements of experts, made in connection
with the particular case, including results of physical or mental
examinations and of scientific tests, experiments, or comparisons,
and a statement of qualifications of the expert;

(v) any books, papers, documents, photographs or tangible
objects which the prosecuting attorney intends to use in the hearing
or trial or which were obtained from or belong to the accused; and

(vi) any record of prior criminal convictions, which may be
used for impeachment, of persons whom the State intends to call
as witnesses at the hearing or trial.

If the State has obtained from the defendant, pursuant to Rule
413(d), information regarding defenses the defendant intends to make,
it shall provide to defendant not less than 7 days before the date set for
the hearing or trial, or at such other time as the court may direct, the
names and addresses of witnesses the State intends to call in rebuttal,
together with the information required to be disclosed in connection
with other witnesses by subdivisions (i), (iii), and (vi), above, and a
specific statement as to the substance of the testimony such witnesses
will give at the trial of the cause.

(b) The State shall inform defense counsel if there has been any
electronic surveillance (including wiretapping) of conversations to
which the accused was a party, or of his premises.

(c) Except as is otherwise provided in these rules as to protective
orders, the State shall disclose to defense counsel any material or
information within its possession or control which tends to negate the
guilt of the accused as to the offense charged or which would tend to reduce
his punishment therefor. The State shall make a good-faith effort to
specifically identify by description or otherwise any material disclosed
pursuant to this section based upon the information available to the State at
the time the material is disclosed to the defense. At trial, the defendant
may not offer evidence or otherwise communicate to the trier of fact the State's
identification of any material or information as tending to negate the guilt of
the accused or reduce his punishment.

(d) The State shall perform its obligations under this rule as soon
as practicable following the filing of a motion by defense counsel.

(e) The State may perform these obligations in any manner
mutually agreeable to itself and defense counsel or by:

(i) notifying defense counsel that material and information,
described in general terms, may be inspected, obtained, tested,
copied, or photographed, during specified reasonable times; and

(ii) making available to defense counsel at the time specified
such material and information, and suitable facilities or other
arrangements for inspection, testing, copying and photographing of
such material and information.

(f) The State should ensure that a flow of information is maintained
between the various investigative personnel and its office sufficient to
place within its possession or control all material and information
relevant to the accused and the offense charged.

(g) Upon defense counsel's request and designation of material or
information which would be discoverable if in the possession or control
of the State, and which is in the possession or control of other
governmental personnel, the State shall use diligent good-faith efforts
to cause such material to be made available to defense counsel; and if
the State's efforts are unsuccessful and such material or other
governmental personnel are subject to the jurisdiction of the court, the
court shall issue suitable subpoenas or orders to cause such material to
be made available to defense counsel.

(h) Discretionary Disclosures. Upon a showing of materiality to
the preparation of the defense, and if the request is reasonable, the
court, in its discretion, may require disclosure to defense counsel of
relevant material and information not covered by this rule.

(i) Denial of Disclosure. The court may deny disclosure authorized
by this rule and Rule 413 if it finds that there is substantial risk to any
person of physical harm, intimidation, bribery, economic reprisals, or
unnecessary annoyance or embarrassment resulting from such
disclosure which outweighs any usefulness of the disclosure to counsel.

(j) Matters Not Subject to Disclosure.

(i) Work Product. Disclosure under this rule and Rule 413 shall
not be required of legal research or of records, correspondence,
reports or memoranda to the extent that they contain the opinions,
theories or conclusions of the State or members of its legal or
investigative staffs, or of defense counsel or his staff.

(ii) Informants. Disclosure of an informant's identity shall not
be required where his identity is a prosecution secret and a failure
to disclose will not infringe the constitutional rights of the accused.
Disclosure shall not be denied hereunder of the identity of
witnesses to be produced at a hearing or trial.

(iii) National Security. Disclosure shall not be required where
it involves a substantial risk of grave prejudice to national security
and where a failure to disclose will not infringe the constitutional
rights of the accused. Disclosure shall not thus be denied hereunder
regarding witnesses or material to be produced at a hearing or trial.

Effective October 1, 1971; amended October 1, 1976, effective November
15, 1976; amended June 15, 1982, effective July 1, 1982; amended March 1, 2001,
effective immediately, except when in the opinion of the trial, Appellate, or
Supreme Court the application of the amended provisions in a particular case
pending at the time the amendment becomes effective would not be feasible or
would work an injustice, in which case former procedures would apply.

Committee Comments

Special Supreme Court Committee on Capital Cases

March 1, 2001

In developing the specific-identification proposal, the committee was
concerned with the possibility that information that clearly tends to be
exculpatory or mitigating would not be disclosed or would be lost among other
information. Examples of information that clearly tends to be exculpatory or
mitigating include: a statement that a person other than the defendant committed
the crime, a statement that the act that caused death was committed by an
accomplice, or a preliminary scientific test result that is not inculpatory, and
some types of impeachment evidence, such as certain prior convictions of State
witnesses, information concerning promises or expectations of leniency for a
State witness, or prior inaccurate or unsuccessful attempts at identification of
the perpetrator by an occurrence witness. The purpose of the
specific-identification requirement is to reinforce the duty to disclose and
reduce the chance of pretrial or trial error with respect to this type of
evidence.

The amendment to paragraph (c) requires a "good-faith" effort to
specifically identify exculpatory and mitigating materials "based on
information available to the State at the time the material is disclosed to the
defense." Thus, the duty to specifically identify is not as broad as the
duty to disclose under Rule 412(c). See Rule 416(g), committee comments. The
good-faith standard is intended to avoid creating an impossible burden for the
prosecution. A "good-faith" effort by prosecutors would include the
specific identification of information that clearly tends to be exculpatory or
mitigating. The amended rule is not intended to require that prosecutors
specifically identify materials with remote or speculative exculpatory or
mitigating value. The need to specifically identify materials falling between
the extremes will depend upon the facts of the case.

The language stating that the duty to identify exculpatory or mitigating
information must be viewed in light of the information available to the State
when the material is disclosed to the defense is significant for several
reasons. First, the information available to the State when disclosure is made
will guide the determination of whether the State has made a good-faith effort
to specifically identify exculpatory or mitigating information. Failure to
identify information that can be characterized as exculpatory or mitigating only
when viewed in light of the defense's theory of the case cannot be seen as
evidence of failure to comply with the rule when the State was not aware of the
defense theory. Second, placing the focus of the inquiry regarding compliance
with the rule on information available at the time of disclosure to the defense
is intended to avoid a standard based on hindsight evaluation of the exculpatory
or mitigating value of information. Thus, a prosecutor's failure to identify
information should not be second-guessed based on defense theories revealed
after the information has been disclosed, unexpected events at trial, or new
theories suggested after the trial.

The committee notes that in light of new evidence received or events at
trial, materials that had no exculpatory value when initially disclosed could be
viewed as exculpatory later in the trial process. The committee did not intend
that the duty to specifically identify exculpatory or mitigating information
would be subject to continuous updating.

The specific identification of potentially exculpatory or mitigating material
by the prosecution pursuant to paragraph (c) is not an admission by the State
for any purpose. Neither the terms or manner of the specific identification by
the prosecution nor the fact that the prosecution has made the specific
identification are relevant or admissible for the purposes of trial on the
merits or sentencing. In addition, specific identification of materials pursuant
to paragraph (c) does not imply that the material will be admissible as evidence

Committee Comments

Paragraph (a). It is intended that the disclosures required by this paragraph
be implemented as a matter of course, and without time-consuming recourse to
the courts. The discovery is not intended to be "automatic," in the sense that the
State is not required to furnish information without any request by the defense
counsel. It is recognized that in many cases discovery will be neither necessary
nor wanted; paragraph (a), therefore, reflects the committee's opinion that the
choice of discovery or no discovery under this rule be within the discretion of
defense counsel. By requiring the motion to be made in writing, rather than
allowing oral motions, the committee expressed the intent that certainty was
necessary in order to prevent later disputes.

Paragraph (a), subparagraph (i), enlarges upon the Code of Criminal
Procedure of 1963, section 114--9(a). In addition to requiring production of a
list of intended witnesses and their last known addresses (in the case of a police
officer his official address shall be sufficient), the State will also be expected
to produce these witnesses' prior statements. People v. Moses, 11 Ill. 2d 84, 142
N.E.2d 1 (1957), and decisions thereunder required the State to tender to
defense counsel all such statements when the witness was tendered for cross-examination. Nothing herein changes the types of material that are to be
provided; only the time of their disclosure is changed. By requiring disclosure
prior to trial, it is hoped that the fruits of discovery can be harvested. Or in the
event the parties have been unable to arrange a guilty plea or a dismissal, the
disclosure assures defense counsel adequate time to prepare. Pretrial disclosure
of this nature not only affords defense counsel adequate opportunity to
investigate the case, but also ensures the end of untimely interruptions at trial
occasioned by disclosures of statements at trial. The ABA standard limited
production of witnesses' statements to those in written or recorded form.
Paragraph (a), subparagraph (i), requires the additional production of any
substantially verbatim report of an oral statement by a witness. The State is also
obliged to produce a list of all memoranda reporting or summarizing oral
statements whether or not the memoranda appear to the State to be substantially
verbatim reports of such statements. The defense is then entitled, upon filing
of a written motion, to have the court examine the memoranda listed by the
State. If the court finds that the memoranda do contain substantially verbatim
reports of witness statements, the memoranda will be disclosed to defense
counsel. This additional requirement serves two purposes. First, it ensures that
the final responsibility for determining what is producible rests with the court.
Second, it establishes, as a matter of record, the contents of the State's file with
respect to reports of witness' statements and thereby facilitates appellate review
of contested questions of discovery under this subsection.

Paragraph (a), subparagraph (ii), is substantially section 114--10(a) of the
Code of Criminal Procedure of 1963. Because of the decision in Miranda v.
Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1601 (1966), uncertainty as
to the proper definition of "confession" exists. To ensure uniformity the
committee therefore chose to make all statements, not only confessions,
discoverable. The availability of all such statements will also enable defense
counsel to better prepare the case. The major change in prior law is that
provision which makes discoverable the prior statements, etc., of all the
accused's codefendants. If an informed motion for severance or excision of a
codefendant's statement to remove prejudice is to be properly made, defense
counsel must be able to obtain all of the codefendant's statements.

Paragraph (a), subparagraph (iii), adopts the ABA standard for production
of grand jury minutes. In terms of Illinois practice, it makes mandatory
disclosure of what is now discretionary under the second sentence of section
112--6(b) of the Code of Criminal Procedure of 1963. Such full disclosure is
now required in a number of other jurisdictions, including California, Iowa,
Kentucky and Minnesota.

In paragraph (a), subparagraph (iv), the committee chose to adopt the
standard recommended by the ABA. There should be no problem of tampering
with or misuse of the information, and without the opportunity to examine such
evidence prior to trial defense counsel has the very difficult task of rebutting
evidence of which he is unaware. In the interest of fairness paragraph (a),
subparagraph (iv), requires the disclosure of all such results and reports,
whether the result or report is "positive" or "negative," and whether or not the
State intends to use the report at trial. If the State has the opportunity to view
the results of any such examination, the same opportunity should enure to
defense counsel. No relevancy limitation is included; the only requirement is
that the examination, etc., have been made "in connection with" the case. This
subparagraph, and the others in this paragraph, are intended to supplement Rule
412(c), which requires the State to disclose any results, etc., which tend to
negate the guilt of the accused or would tend to reduce his punishment were he
convicted.

Paragraph (a), subparagraph (v), is identical to the ABA standard for
production of books, papers, documents, photographs and tangible objects.

Paragraph (a), subparagraph (vi), differs from the ABA standards in that
it is limited to prior convictions which may be used for impeachment purposes
in Illinois. The committee could discern no valid reason why this information
should not be disclosed to the defense prior to trial when such information is
in the possession or control of the State.

Paragraph (b) is included to expose for appropriate challenge an important
collateral constitutional question. The nature of the exposure is designed to
ensure the confidentiality of the information, and to provide flexibility in the
releasing of the information, but to permit the litigation of any issues which
those facts may present at a time when such litigation is most economical for
the process. The necessity of the revelation of the existence of electronic
surveillance has been recognized, and in camera hearings on the question of
suppression of such evidence might be necessary. (Alderman v. United States,
394 U.S. 165, 22 L. Ed. 2d 176, 89 S. Ct. 961 (1969).) Because of the small
number of cases in which such activity is involved, the committee chose to put
the burden on the State to inform defense counsel, rather than to require the
submission of a motion.

Paragraph (c) is included to comply with the constitutional requirement
that the prosecution disclose, "evidence favorable to an accused *** where the
evidence is material either to guilt or to punishment." (Brady v. Maryland, 373
U.S. 83, 87, 10 L. Ed. 2d 215, 218, 83 S. Ct. 1194, 1196-97 (1963).) Although
the pretrial disclosure of such material is now not constitutionally required, it
is clear that, if a conviction is to be valid, the material must be disclosed so that
the defense can make use of it. In providing for pretrial disclosure, this
paragraph permits adequate preparation for, and minimizes interruptions of, a
trial, and assures informed pleas by the accused.

Paragraph (d) differs from the ABA standards only to require the State to
perform its obligations as soon as is practicable following defense counsel's
motion for discovery, rather than as soon as is practicable following his request
for discovery. This change was made to accommodate the procedures of Rule
412(a), which require the filing of a written motion to initiate most discovery.
More precision in describing the standard for performance was not deemed
feasible for a rule that would be applied in such a wide variety of situations.

Paragraph (e) is designed to provide an orderly procedure for disclosure
by the State. It delimits the extent of its responsibility to notifying defense
counsel, only in general terms, as to the existence and availability of the
material and information. The State need not send copies to defense counsel
and it need not point out the significance of various items. It must, however,
make the material available at specified and reasonable times, and permit--and
provide suitable facilities or other arrangements for--inspection, testing,
copying and photographing the material or information. If the State should
desire to delay or restrict discovery it can seek a protective order therefor (Rule
415(d)) at the time of defense counsel's original motion, or at any time
following. Access to material by a defense expert must be permitted, sufficient
to allow him to reach conclusions regarding the State's examining or testing
techniques and results. Where feasible, defense counsel should have the
opportunity to have a test made by his chosen expert, either in the State's
laboratory or in his own laboratory using a sufficient sample.

Paragraph (f) is designed to deal with the problem of the extent to which
the State can be expected to know of the existence of material or information
which it is obligated to disclose. In discharging its duties it should know, or
seek to know, of the existence of material or information at least equal to that
which it should disclose to defense counsel. The formulation of a rule such as
this means especially that the State should not discourage the flow of
information to it from investigative personnel in order to avoid having to make
disclosure. Supplementing paragraph (f) are Rules 412(g), dealing with material
held by other government personnel, and 415(b), dealing with the State's
continuing duty to disclose new information of which it learns. The committee
chose not to include a rule similar to ABA standard 2.1(d), which describes
persons whose possession or control of material and information could be
imputed to the prosecutor. It is assumed that this paragraph and the paragraphs
cited in this comment will be sufficient to guide a court in determining if proper
disclosure has been made.

Paragraph (g) is part of the attempt to delineate the scope of the State's
responsibilities for obtaining information which it is obligated to disclose to
defense counsel. It complements the requirement in Rule 412(F), that it ensure
the flow of information between the prosecutor and investigative personnel.
Since the State's obligations are not limited to revealing only what happens to
come within its possession or control, it is expected that the State will attempt
to obtain material not within its possession but of which it has knowledge.
Accordingly, this paragraph is primarily concerned with material of which the
State does not have knowledge but of which defense counsel is aware; and
therefore the burden is upon defense counsel to make the request and to
designate the material or information which he wishes to inspect. This
paragraph avoids placing the burden on the prosecutor, in the first instance, of
canvassing all governmental agencies which might conceivably possess
information relevant to the defendant. Paragraph (g) is not intended to enlarge
the scope of discovery but merely to deal with problems of implementation. It
is, therefore, limited to material or information "which would be discoverable
if in the possession or control of the State."

Paragraph (h) of this rule authorizes discovery only if the court so orders
within the exercise of its discretion; discovery will only be allowed when
defense counsel can show that what he seeks is material to the preparation of
the defense. Though there was some opinion in the committee that the
production of items and the performance of duties required in paragraphs
412(a) through (g) would result in adequate discovery in most cases, by
providing for mandatory discovery the committee did not intend to bar
discovery of any other matters which the defense might find useful. To deal
with such a broad area, however, it is believed that the criteria here set forth
and the discretionary power accorded to the court provide a satisfactory balance
between the needs of the State and the needs of the defense.

Paragraph (i). Although the ABA standards combine the provisions of this
paragraph with the provisions of paragraph 412(h), the committee separated the
paragraphs. By separating the two paragraphs it was felt that there would be no
confusion in the application of the court's right to deny disclosure. Paragraph
(i) is intended not only to be used by the court in conjunction with the
discretionary disclosures provided for in paragraph 412(h), but is also to be
applied whenever the risks of disclosure outweigh the advantages of such
disclosure to the defense or State.

Under paragraph (j), subparagraph (i), the material which is protected is
primarily that which is protected from civil discovery under the doctrine of Hickman v. Taylor, 329 U.S. 495 (1947). But rather than merely indicate that
"work product" is exempted from discovery the committee chose instead to
define it in such a way as to provide guidance to those who will administer and
carry out the disclosures provided for in these rules.

Paragraph (i), subparagraph (ii). The value of informants to effective law
enforcement is so highly regarded that encouragement of their use, through
protection of their identity, has resulted in the development of one of the few
privileges accorded to the State. The public interest in protecting the sources of
information concerning the commission of crimes is served by providing for the
nondisclosure of the identity of informants except when compelling
circumstances require it. Disclosure should only be required when
constitutional problems are raised or when the informant's identity is to be
disclosed at trial (although a protective order under Rule 414(d) might still be
in order). The cases which have established this privilege include McCray v.
Illinois, 386 U.S. 300 (1967), Roviaro v. United States, 353 U.S. 53 (1957), People v. White, 16 N.Y.2d 270, 266 N.Y.S.2d 100, 213 N.E.2d 438 (1965),
and Commonwealth v. Carter 208 Pa. Super. 245, 222 A.2d 475 (1966), aff'd
mem., 209 Pa. Super. 732, 226 A.2d 215 (1967).

Paragraph (j), subparagraph (iii). While a defendant has a constitutional
right to information which tends to negate his guilt or mitigate his punishment
(Brady v. Maryland, 373 U.S. 83 (1963)), and to be confronted with the
witnesses against him (Jencks v. United States, 353 U.S. 657 (1957)), and to
any other information the withholding of which might violate his constitutional
rights, he has no such right to information which does not affect his
constitutional rights. This subparagraph, therefore, permits nondisclosure if
disclosure would involve a substantial risk of grave prejudice to national
security, and if such nondisclosure does not violate a constitutional right of the
defendant. If the State intends to use the information or material at trial it
should be disclosed to defendant prior to trial unless the State obtains a
protective order delaying disclosure.

(a) The Person of the Accused. Notwithstanding the initiation of
judicial proceedings, and subject to constitutional limitations, a judicial
officer may require the accused, among other things, to:

(i) appear in a lineup;

(ii)speak for identification by witnesses to an offense;

(iii) be fingerprinted;

(iv) pose for photographs not involving reenactment of a scene;

(v) try on articles of clothing;

(vi) permit the taking of specimens of material under his
fingernails;

(vii) permit the taking of samples of his blood, hair and other
materials of his body which involve no unreasonable intrusion
thereof;

(viii) provide a sample of his handwriting; and

(ix) submit to a reasonable physical or medical inspection of
his body.

(b) Whenever the personal appearance of the accused is required
for the foregoing purposes, reasonable notice of the time and place of
such appearance shall be given by the State to the accused and his
counsel, who shall have the right to be present. Provision may be made
for appearances for such purposes in an order admitting the accused to
bail or providing for his release.

(c) Medical and Scientific Reports. Subject to constitutional
limitations, the trial court shall, on written motion, require that the State
be informed of, and permitted to inspect and copy or photograph, any
reports or results, or testimony relative thereto, of physical or mental
examinations or of scientific tests, experiments or comparisons, or any
other reports or statements of experts which defense counsel has in his
possession or control, including a statement of the qualifications of such
experts, except that those portions of reports containing statements
made by the defendant may be withheld if defense counsel does not
intent to use any of the material contained in the report at a hearing or
trial.

(d) Defenses. Subject to constitutional limitations and within a
reasonable time after the filing of a written motion by the State, defense
counsel shall inform the State of any defenses which he intends to make
at a hearing or trial and shall furnish the State with the following
material and information within his possession or control:

(i) the names and last known addresses of persons he intends
to call as witnesses, together with their relevant written or recorded
statements, including memoranda reporting or summarizing their
oral statements, and record of prior criminal convictions known to
him; and

(ii) any books, papers, documents, photographs, or tangible
objects he intends to use as evidence or for impeachment at a
hearing or trial;

(iii) and if the defendant intends to prove an alibi, specific
information as to the place where he maintains he was at the time
of the alleged offense.

(e) Additional Disclosure. Upon a showing of materiality, and if
the request is reasonable, the court in its discretion may require
disclosure to the State of relevant material and information not covered
by this rule.

Paragraphs (a) and (b) provide for procedures to secure evidence from or
involving the use of defendant's person consistent with the rules enunciated in Gilbert v. California, 388 U.S. 263 (1967), and cases cited therein. See also Williams v. United States, 419 F.2d 740 (D.C. Cir. 1970) (bail order may
provide for appearance of defendant for lineup).

Paragraph (c) provides for the production of medical and scientific
evidence in the possession or control of defense counsel. Such evidence does
not fall within the attorney-client privilege (People v. Speck, 41 Ill. 2d 177), nor
does such evidence involve self-incrimination unless it is based upon
statements made by defendant. Where statements of defendant are involved
they may be excised from reports. When defense counsel intends to use the
scientific or medical evidence based upon the defendant's statements to the
expert, excision shall not be made.

Paragraph (d) requires that defense counsel inform the State of any
defenses he intends to offer. The notice of defenses includes both affirmative
defenses, i.e., insanity, and nonaffirmative defenses, i.e., consent to intercourse
in rape cases. The notice may include alternative and inconsistent defenses. In
addition, defense counsel must produce a list of witnesses and their statements,
along with any records or physical evidence he intends to use and any record
of prior convictions, known to him. The general justifications for discovery in
criminal cases apply to discovery against the defense. Such discovery
eliminates unfair surprise and allows the opposing party to establish the truth
or falsity of the defense. In addition, discovery against the defense eliminates
the argument that criminal discovery is a one-way street. The discovery
provisions with respect to the defense case are based upon two further
premises: (1) when defense counsel receives full discovery of the evidence the
State will introduce, he can then determine what defenses he can offer to that
evidence and (2) only when defense counsel states his defense or defenses can
the trial court make a full and fair determination of whether the dictates of Brady v. Maryland, 373 U.S. 83 (1963), have been fully met.

Paragraph (e) allows the court to order additional discovery not covered
by the remainder of the rule but only upon a showing of materiality and
reasonableness. The provision is parallel to Rule 412(h).

(a) If it appears to the court in which a criminal charge is pending
that the deposition of any person other than the defendant is necessary
for the preservation of relevant testimony because of the substantial
possibility it would be unavailable at the time of hearing or trial, the
court may, upon motion and notice to both parties and their counsel,
order the taking of such person's deposition under oral examination or
written questions for use as evidence at a hearing or trial.

(b) The taking of depositions shall be in accordance with rules
providing for the taking of depositions in civil cases, and the order for
the taking of a deposition may provide that any designated books,
papers, documents or tangible objects, not privileged, be produced at the
same time and place.

(c) If a witness is committed for failure to execute a recognizance
to appear to testify at a hearing or trial, the court, on written motion of
the witness and upon notice to the State and defense counsel, may order
that his deposition be taken, and after the deposition has been
subscribed, the court may discharge the witness.

(d) Rule 207--Signing and Filing Depositions--shall apply to the
signing and filing of depositions taken pursuant to this rule.

(e) The defendant and defense counsel shall have the right to
confront and cross-examine any witness whose deposition is taken. The
defendant and defense counsel may waive such right in writing, filed
with the clerk of the court.

(f) If the defendant is indigent, all costs of taking depositions shall
be paid by the county wherein the criminal charge is initiated. If the
defendant is not indigent the costs shall be allocated as in civil cases.

Effective October 1, 1971.

Committee Comments

The committee chose not to include depositions for discovery purposes,
but did decide to follow the unmistakable trend and provide for depositions to
preserve testimony. This rule allows both the State and defense counsel to take
such depositions and use the testimony as evidence at a hearing or trial in
situations where the potential witness will be unable to appear at hearing or trial
for any reason. The deposition is not taken by right but is subject to court
approval. Notice should be taken of the fact that depositions may be taken by
written questions as well as by oral examination.

Paragraph (c) provides for the taking of a deposition in circumstances
which most other jurisdictions have recognized as a necessary use of
depositions. In order to prevent unnecessary incarceration, a judge may permit
the deposition of a witness committed for failure to execute a recognizance to
appear.

Paragraphs (e) and (f) protect the defendant's constitutional rights.
Paragraph (e) protects his rights of confrontation and cross-examination, and
paragraph (f) assures equal protection to those indigents whose defense
requires the taking of a deposition.

(a) Investigations Not to be Impeded. Except as is otherwise
provided as to matters not subject to disclosure and protective orders,
neither the counsel for the parties nor other prosecution or defense
personnel shall advise persons having relevant material or information
(except the accused) to refrain from discussing the case with opposing
counsel or showing opposing counsel any relevant material, nor shall
they otherwise impede opposing counsel's investigation of the case.

(b) Continuing Duty to Disclose. If, subsequent to compliance
with these rules or orders pursuant thereto, a party discovers additional
material or information which is subject to disclosure, he shall promptly
notify the other party or his counsel of the existence of such additional
material, and if the additional material or information is discovered
during trial, the court shall also be notified.

(c) Custody of Materials. Any materials furnished to an attorney
pursuant to these rules shall remain in his exclusive custody and be used
only for the purposes of conducting his side of the case, and shall be
subject to such other terms and conditions as the court may provide.

(d) Protective Orders. Upon a showing of cause, the court may at
any time order that specified disclosures be restricted or deferred, or
make such other order as is appropriate, provided that all material and
information to which a party is entitled must be disclosed in time to
permit counsel to make beneficial use thereof.

(e) Excision. When some parts of certain material are discoverable
under these rules, and other parts not discoverable, as much of the
material should be disclosed as is consistent with the rules. Excision of
certain material and disclosure of the balance is preferable to
withholding the whole. Material excised pursuant to judicial order shall
be sealed, impounded and preserved in the records of the court, to be
made available to the reviewing court in the event of an appeal.

(f) In Camera Proceedings. Upon request of any person, the court
may permit any showing of cause for denial or regulation of disclosures,
or portion of such showing, to be made in camera. A record shall be
made of such proceedings. If the court enters an order granting relief
following a showing in camera, the entire record of such showing shall
be sealed, impounded, and preserved in the records of the court, to be
made available to the reviewing court in the event of an appeal.

(g) Sanctions.

(i) If at any time during the course of the proceedings it is
brought to the attention of the court that a party has failed to
comply with an applicable discovery rule or an order issued
pursuant thereto, the court may order such party to permit the
discovery of material and information not previously disclosed,
grant a continuance, exclude such evidence, or enter such other
order as it deems just under the circumstances.

(ii) Wilful violation by counsel of an applicable discovery rule
or an order issued pursuant thereto may subject counsel to
appropriate sanctions by the court.

Effective October 1, 1971.

Committee Comments

Paragraph (a). One barrier to pretrial investigation and meaningful
discovery procedures is the practice of some attorneys of advising witnesses not
to cooperate with opposing counsel. This paragraph is included to provide that
discovery shall not be frustrated by improper conduct of counsel or the various
agents of counsel.

Paragraph (b) is modeled after Federal Rule of Criminal Procedure 16(c).
This paragraph is intended to permit thorough preparation and to minimize
paperwork and delay. After discovery has been conducted as provided, any
additional material or information acquired by either side which is subject to
disclosure should be automatically and promptly disclosed. The notification
required by this paragraph is intended to make such disclosures as simple and
easy as possible.

Paragraph (c). If the materials to be provided were to become, in effect,
matters of public availability once they had been turned over to counsel for the
limited purposes which pretrial disclosures are designed to serve, the
administration of criminal justice would likely be prejudiced. Accordingly, this
paragraph establishes a mandatory requirement in every case that the material
which an attorney receives shall remain in his exclusive custody. While he will
undoubtedly have to show it to, or at least discuss it with, others, he is not
permitted to furnish them with copies or let them take it from his office. It
should be noted that this paragraph also applies to the State. Nothing in this
paragraph should be interpreted to prevent counsel from having tests performed
by experts on materials furnished by opposing counsel or from having experts
examine reports received from opposing counsel. Tangible objects, such as
guns, knives, clothing, not subject to duplication but furnished for purposes of
testing, etc., should be returned to the furnishing party when such testing or
inspection is completed. If not returned routinely the last phrase permits the
court to so order, in addition to any other terms and conditions provided.

Paragraph (d). In order that legitimate needs of exceptional cases will not
shape discovery policy and result in denial of discovery in all cases, this
paragraph is designed to provide sufficient flexibility to meet such exceptional
needs. This paragraph, adapted from Federal Rule of Criminal Procedure 16(e),
permits application by the party concerned to the court for a protective order
adjusting the time, place, recipient, or use of the disclosures as are necessary
in a particular case. It is anticipated that it will ordinarily be needed with
respect to those matters for which discovery is mandatory, rather than matters
where the court has discretion in allowing discovery under Rule 412(h). While
the protective order is designed to permit flexibility, it is to be used under a
policy of as full and as early discovery as possible; it is not intended to permit
denial of disclosure, although it may result in deferral until a later time. The
disclosure must be made in time for a party to make beneficial use of it. Normal
use of the protective order will be made when there is substantial risk to any
person of physical harm, intimidation, bribery, or economic reprisals which
outweigh any usefulness of disclosure to the defendant or State.

Paragraph (e). Occasions will arise when material will contain information
which is both discoverable and nondiscoverable. This paragraph recognizes the
right of a party to excise, or have excised, the nondiscoverable portion. The
procedure under this paragraph is different from that under the Jencks Act, 18
U.S.C. ß3500(c), and under present Illinois practice, only in giving approval to
a party excising portions of material without court supervision. Approval of
counsel's independent conduct is consistent with the purpose of expediting the
discovery process, but it is expected that in many cases counsel will seek a
decision by the court, and that, in any event, he will be held accountable for
excisions, if they are challenged by opposing counsel. The only change from
the ABA standards is the requirement that the material excised pursuant to a
judicial order not only be sealed, but also impounded and preserved.

Paragraph (f) provides for preserving the confidentiality of material at
such times as the trial court is called upon to decide whether to require its
disclosure. In issuing protective orders under paragraph (d), allowing excision
of portions of material under paragraph (e), or in otherwise deciding that certain
material is not subject to disclosure, the trial court must have an opportunity to
examine, in private, the particular material as well as the reasons for
nondisclosure. The purpose of issuing such rulings would often be defeated if
the hearing were to be held in open court. To protect the litigants from error by
the trial court, provision is made for the making and preserving of a record of
all such proceedings for purposes of appeal.

Through paragraph (g), the committee intended to emphasize that these
discovery rules must be enforced. Rather than attempt to provide specific
sanctions for specific violations, the committee deemed it wise to leave the
sanctions to the discretion of the trial court. This paragraph does contain one
provision not present in the ABA standards. If justified under the
circumstances, the court may exclude evidence which a party has failed to
disclose under applicable discovery rules. The committee felt that such a device
is a useful sanction, and that even though some problems may arise in applying
it against the accused, the sanction can be applied in some situations. In this
regard this paragraph conforms to Federal Rule of Criminal Procedure 16(g),
and further guarantees the expedition of the discovery process. The sanctions
listed are not exclusive.

(a) Scope of Rule. The procedures adopted herein shall be applicable in all cases
wherein capital punishment may be imposed, unless the State has given notice of its
intention not to seek the death penalty.

(b) Statement of Purpose. This rule is promulgated for the following purpose:

(i) To assure that capital defendants receive fair and impartial trials and
sentencing hearings within the courts of this state; and

(ii) To minimize the occurrence of error to the maximum extent feasible
and to identify and correct with due promptness any error that may occur.

(c) Notice of Intention to Seek or Decline Death Penalty. The State’s Attorney
or Attorney General shall provide notice of the State’s intention to seek or reject
imposition of the death penalty by filing a Notice of Intent to Seek or Decline Death
Penalty as soon as practicable. In no event shall the filing of said notice be later than
120 days after arraignment, unless for good cause shown, the court directs otherwise.
The Notice of Intent to seek imposition of the death penalty shall also include all of
the statutory aggravating factors enumerated in section 9-1(b) of the Criminal Code
of 1961 (720 ILCS 5/9-1(b)) which the State intends to introduce during the death
penalty sentencing hearing.

(d) Representation by Counsel. In all cases wherein the State has given notice of
its intention to seek the death penalty, or has failed to provide any notice pursuant
to paragraph (c), the trial judge shall appoint an indigent defendant two qualified
counsel who have been certified as members of the Capital Litigation Trial Bar
pursuant to Rule 714, or appoint the public defender, who shall assign two qualified
counsel who have been certified as members of the Capital Litigation Trial Bar. In
the event the defendant is represented by private counsel, the trial judge shall
likewise insure that counsel is a member of the Capital Litigation Trial Bar.

The trial judge shall likewise insure that counsel for the State, unless said counsel
is the Attorney General or the duly elected or appointed State’s Attorney of the
county of venue, is a member of the Capital Litigation Trial Bar.

(e) Discovery Depositions in Capital Cases. In capital cases discovery
depositions may be taken in accordance with the following provisions:

(i) A party may take the discovery deposition upon oral questions of any
person disclosed as a witness pursuant to Supreme Court Rules 412 or 413 with
leave of court upon a showing of good cause. In determining whether to allow
a deposition, the court should consider the consequences to the party if the
deposition is not allowed, the complexities of the issues involved, the complexity
of the testimony of the witness, and the other opportunities available to the party
to discover the information sought by deposition. However, under no
circumstances, may the defendant be deposed.

(ii) The taking of depositions shall be in accordance with rules providing for
the taking of depositions in civil cases, and the order for the taking of a
deposition may provide that any designated books, papers, documents or tangible
objects, not privileged, be produced at the same time and place.

(iii) Attendance of Defendant. A defendant shall have no right to be
physically present at a discovery deposition.

(iv) Signing and Filing Depositions. Rule 207 shall apply to the signing and
filing of depositions taken pursuant to this rule.

(v) Costs. If the defendant is indigent, all costs of taking depositions shall be
paid by the county wherein the criminal charge is initiated. If the defendant is not
indigent the costs shall be allocated as in civil cases.

(f) Case Management Conference. No later than 120 days after the defendant has
been arraigned or no later than 60 days after the State has disclosed its intention to
seek the death penalty, whichever date occurs earlier, the court shall hold a case
management conference. Counsel who will conduct the trial personally shall attend
such conference. At the conference, the court shall do the following:

(i) Confirm the certification of counsel under Supreme Court Rule 714 as a
member in good standing of the Capital Litigation Trial Bar.

(ii) Confirm that all disclosures by the State required under Supreme Court
Rule 412 have been completed and that the certificate required by paragraph (g)
below has been filed or establish a date by which the same shall be
accomplished.

(iii) Confirm that all disclosures required by defense counsel under Supreme
Court Rule 413 have been completed and that the certificate required by
paragraph (h) below has been filed or establish a date by which the same shall
be accomplished.

(iv) Confirm that the State has disclosed all statutory aggravating factors
enumerated in section 9-1(b) of the Criminal Code of 1961 (720 ILCS 5/9-1(b))
which the State intends to introduce during the death penalty sentencing hearing
or establish a date by which the same shall be accomplished.

(v) Confirm that all disclosures required by Supreme Court Rule 417 have
been completed or establish a date by which the same shall be accomplished.

(vi) Enter any other orders and undertake any other steps necessary to
implement this rule.

(vii) Schedule any further case management conferences which the trial court
deems advisable.

(g) In all capital cases the State shall file with the court not less than 14 days
before the date set for trial, or at such other time as the court may direct, a certificate
stating that the State’s Attorney or Attorney General has conferred with the
individuals involved in the investigation and trial preparation of the case and
represents that all material or information required to be disclosed pursuant to Rule
412 has been tendered to defense counsel. This certificate shall be filed in open court
in the defendant’s presence.

(h) In all capital cases the defense shall file with the court not less than 14 days
before the date set for trial, or at such other time as the court may direct, a readiness
certificate signed by both lead and co-counsel stating that they have met with the
defendant and fully discussed the discovery, the State’s case and possible defenses,
and have reviewed the evidence and defenses which may mitigate the consequences
for the defendant at trial and at sentencing. This certificate shall be filed in open
court in the defendant’s presence.

Adopted March 1, 2001. The provisions of paragraphs (d) and (f)(i) which require
membership in the Capital Litigation Trial Bar shall be effective one year after adoption
of this rule and shall apply in cases filed by information or indictment on or after said
effective date. The remaining provisions of the rule shall be effective immediately,
except when in the opinion of the trial, Appellate, or Supreme Court the application of
the new rules in a particular case pending at the time the rule becomes effective would
not be feasible or would work an injustice, in which case former procedures would
apply.

Committee Comments

Special Supreme Court Committee on Capital Cases

March 1, 2001

(Revised September 23, 2008)

Rule 416 is part of a series of measures designed to improve pretrial and trial
procedures in capital cases. The purpose of Rule 416, as stated in paragraph (b), is
to ensure that capital defendants receive fair and impartial trials and to minimize the
occurrence of error in capital trials. See also Rule 43 (judicial seminars on capital
cases), Rule 411 (applicability of discovery rules to capital sentencing hearings),
Rule 412(c) (State identification of material that may be exculpatory or mitigating),
Rule 417 (DNA evidence), and Rules 701(b) and 714 (Capital Litigation Trial Bar).

Paragraph (a) limits the application of Rule 416 to cases in which the death
penalty may be imposed, i.e., a case involving a first degree murder charge, where
the defendant may be eligible for the death penalty and the State has not provided
notice it will decline to seek the death penalty. The capital case procedures of Rule
416 are generally not intended to take effect until the State has had the opportunity
to provide notice of its intent to seek or decline to seek the death penalty as provided
in paragraph (c). All capital case procedures under Rule 416 take effect upon the
earlier of: (1) notice that the State intends to seek the death penalty; or (2) expiration
of the time for notice under paragraph (c) without notice of the State’s intent to seek
or not seek the death penalty. A case is presumed to be capital in the event the State
does not provide notice in the time allowed by paragraph (c) in order to prevent
unreasonable delay in the application of capital case procedures.

Paragraph (c) requires the State to provide pretrial notice of its intent to seek or
decline to seek the death penalty as soon as practicable. Unless the court directs
otherwise for good cause shown, notice must be given within 120 days after the
defendant’s arraignment. If the State intends to seek the death penalty, the
aggravating factors the State intends to introduce in the death penalty sentencing
hearing must also be disclosed. The notice requirement is intended to improve trial
administration by providing the defendant and the court with advance notice that a
case is actually, rather than potentially, a capital case. The notice requirement is also
intended to promote fairness in capital trials by ensuring the defendant is clearly
advised of the State’s intent to seek the death penalty and the basis upon which the
death penalty will be sought, thereby allowing better preparation for trial. Early
notice that the State will not seek the death penalty will also help to limit the use of
capital case resources and procedures to actual capital cases.

The committee chose 120 days after arraignment as the benchmark for State
notice so that State’s Attorneys would have adequate time to decide whether to seek
or not seek the death penalty. The committee found that by exercising careful and
informed discretion in deciding whether to seek the death penalty, the State’s
Attorney provides an indispensable check against the possibility of injustice in
capital cases. The committee sought to encourage the elected or appointed State’s
Attorney to personally review potential death penalty cases before making the
decision to seek or not seek the death penalty. The committee found that for most
capital cases statewide, and nearly all capital cases in Cook County, notice no more
than 120 days after arraignment will be far enough in advance of the trial date to
provide the defendant with meaningful notice of the nature of the case and to trigger
capital case procedures early enough allow the defendant to receive the intended
benefit of those procedures.

In some circumstances the State will be required to give notice of its intent to
seek or decline to seek the death penalty before 120 days have elapsed. For example,
if the State is ready to proceed to trial at an early date, notice of the State’s intent
should be given immediately. In such cases, the decision to seek or not seek the
death penalty has been made, and paragraph (c) requires notice as soon as
practicable. If the defendant intends to exercise the right to a speedy trial and insist
on an early trial date, the defendant may move to accelerate the time for notice. The
rule is also intended to permit the trial court to accelerate the time for notice sua
sponte.

Paragraph (d) provides that two attorneys who are members of the Capital
Litigation Trial Bar established by Rule 714 must be appointed to represent an
indigent defendant in a capital case. In appointing counsel, the trial court may wish
to consider whether the appointment will conflict with counsel’s existing caseload.
Paragraph (d) also provides that the trial court must confirm that all attorneys
appearing in a capital case (other than the Attorney General or the duly elected or
appointed State’s Attorney for the county of venue) are members of the Capital
Litigation Trial Bar, whether they are public defenders, appointed counsel, retained
defense counsel, or members of the prosecution. But seeRule 701(b) (nonmembers
may participate in the capacity of third chair under the direct supervision of qualified
lead or co-counsel).

The duty to verify the qualifications of counsel and appoint a second attorney to
represent an indigent defendant does not take effect until the State gives notice of
intent to seek the death penalty or until the time for notice under paragraph (c)
expires without any notice from the State. However, while the State’s decision to
seek or decline to seek the death penalty is pending, the trial court should act to
minimize potential harm to the defendant. If the defendant is indigent a member of
the Capital Litigation Trial Bar, certified as lead counsel, should be appointed.
Appointment of private counsel will be necessary in such cases when the public
defender’s office does not have qualified counsel available, when the public
defender’s office can only provide one qualified attorney for the case and has
declined to provide representation in association with private appointed counsel (see
discussion of mixed representation, below), or when the public defender is otherwise
unavailable to provide representation.

In a small number of cases, the defendant may initially retain an attorney who is
not member of the Capital Litigation Trial Bar or is not certified as lead counsel. See
Rule 701(b) (private attorneys who are not members of the Capital Litigation Trial
Bar should not agree to provide representation in a potentially capital case). When
the defendant in a potentially capital case appears with retained counsel, the trial
court should immediately determine whether the attorney is a member of the Capital
Litigation Trial Bar and whether the attorney is certified as lead counsel or will serve
as co-counsel with properly certified lead counsel. If it appears counsel is not a
member of the Capital Litigation Trial Bar or does not have the proper certification,
the court should explain the Capital Litigation Trial Bar membership requirements
to the defendant and (unless the State indicates notice that the death penalty will not
be sought will be filed instanter) advise the defendant to retain a properly certified
member of Capital Litigation Trial Bar. Similarly, if a nonindigent defendant in a
potentially capital case appears initially without counsel, the court should advise the
defendant to retain a properly certified member of the Capital Litigation Trial Bar.

Paragraph (d) also provides that if appointed in a capital case, the public defender
shall assign two qualified attorneys to represent the defendant. As noted above, the
appointment of private counsel may be necessary when the public defender’s office
is unable to provide two qualified attorneys. However, Rule 416(d) is not intended
to prohibit the trial court from appointing a private attorney to serve with an attorney
from the public defender’s office if the public defender’s office is able to provide
one qualified attorney and both the public defender and private counsel consent.

The committee believes that in many cases the public defender will be willing
and able to work with private appointed counsel. The advantages of mixed
representation include the ability of the public defender’s office to assist private
appointed counsel in gaining access to capital case resources and to provide insight
regarding local practices. Mixed representation could also provide the opportunity
for qualified co-counsel in the public defender’s office to obtain experience in capital
cases. On the other hand, the risk of inconsistency and disharmony on the defense
team, and potential liability issues for the public defender, suggest that the trial court
should never make an appointment involving mixed representation without the
express consent of the public defender and the private attorney. However, trial courts
shall not appoint attorneys of the Office of the State Appellate Defender to serve as
trial counsel in capital cases nor shall attorneys of that agency serve in that capacity
unless and until such time as they may be statutorily authorized to appear as trial
counsel.

Concerns about potential conflicts between defense counsel also warrant caution
when the court appoints two private attorneys for an indigent capital defendant. Lead
counsel should be appointed first, and allowed to recommend co-counsel. Lead
counsel’s recommendation for co-counsel should be accepted, unless the attorney
recommended is not a member of the Capital Litigation Trial Bar.

Paragraph (e) permits the parties to seek leave of court to depose persons who
have been identified as potential witnesses pursuant to Rule 412 or Rule 413. The
committee found that discovery depositions may enhance the truth-seeking process
of capital trials by providing counsel with an additional method to discover relevant
information and prepare to confront key witness testimony. The availability of
discovery depositions may also aid the trial judge in ruling upon motions in limine and evidentiary objections at trial.

Although depositions are a necessary means of improving discovery in capital
cases, the trial court must be aware of the impact a deposition may have on a witness,
and address any witness problems and concerns as they arise. For example,
depositions should be scheduled to avoid conflicts with the work and family
obligations of a witness. If there is any concern regarding witness safety, the court
may require that the deposition be held in a place or manner that will ensure the
security of the witness. The court may also issue protective orders to restrict the use
and disclosure of information provided by a witness. Counsel should be prepared to
advise the trial court of any special concerns regarding a witness, so the court may
fashion an appropriate deposition order.

The decision to permit a deposition is committed to the sound discretion of the
trial court. The rule does not limit the use of depositions to specific categories of
witnesses, because the need to depose a potential witness will depend on the facts of
each case. The committee found, however, that depositions are more likely to be
necessary for certain types of witnesses. For example, complex trial issues are often
raised by the testimony of jailhouse informants, witnesses who have criminal charges
pending, witnesses who have not completed their sentence in a criminal case, and
witnesses who testify for the State by agreement. Trial courts may also find
depositions of eyewitnesses, and particularly sole eyewitnesses, are warranted to
ensure full disclosure and adequate testing of crucial eyewitness testimony. In
addition, the complex nature of expert testimony suggests that depositions of expert
witnesses may often be justified.

The categories of witnesses mentioned above are illustrative only. Depositions
of witnesses falling within these categories are not intended to be automatic. For
example, the deposition of a pathologist who will testify regarding cause of death
may not be necessary in a case involving the defense of insanity. Conversely, the
categories of witnesses suggested above are not exclusive. The trial court’s decision
to grant or deny a request to depose must be made on a case-by-case basis,
considering the facts and issues of the case and the factors listed in the Rule.

Paragraph (e)(iii) provides that a defendant has no right to be physically present
at a discovery deposition. The rule is based on the determination that concerns about
the risk of witness intimidation, as well as the cost and security issues related to a
defendant’s attendance at a deposition, far outweigh any potential benefits
attendance may have for the defendant. The rule does not foreclose the possibility
that the trial court may find sufficient cause to permit the attendance of the defendant
at a discovery deposition and is not intended to restrict the discretion of the trial
court in that regard.

Paragraph (f) requires the court to hold a case management conference no later
than 120 days after the defendant has been arraigned or 60 days after the State
provides notice of its intent to seek the death penalty, whichever is earlier. At the
case management conference, the court will confirm that counsel are members in
good standing of the Capital Litigation Trial Bar, and appoint qualified counsel, as
necessary. The case management conference also provides the court with an
opportunity to verify that the State has provided notice of those aggravating factors
the State intends to introduce in the capital sentencing hearing. The court may also
take any other steps necessary to ensure compliance with Rule 416. Scheduling of
additional case management conferences is within the discretion of the trial court.

The case management conference provides an important tool for management of
the discovery process. Subparagraphs (ii) and (iii) of paragraph (f) authorize the
court to monitor compliance with discovery requirements and set deadlines for
discovery under Rules 412 and 413, respectively. The provisions of subparagraph
(vi) of paragraph (f) permit the court to establish deadlines for requesting and taking
depositions. Specific deadlines for depositions should be established when needed
to prevent undue delay in bringing a case to trial and to avoid speedy-trial issues.

Paragraph (f) does not limit the trial court’s discretion with respect to procedures
for case management conferences, and permits the trial court to expand the scope of
the conferences as the circumstances require. For example, the trial court may wish
to hold a conference pertaining to discovery deadlines in an informal setting, and
confirm the results of the conference with a written discovery order. While the rule
is intended to be flexible, the committee notes that in the context of a criminal
proceeding the use of informal case management conference procedures must be
approached with caution, and the need for a record should always be considered.

Paragraph (g) requires the State to certify that disclosures required by Rule 412
have been completed (subject to the continuing duty to disclose additional materials
under Rule 415(b)). Paragraph (g) also requires certification that the State has
contacted persons involved in the investigation and trial preparation of the case to
determine the existence of material required to be disclosed under Rule 412. The
duty to contact persons involved in the investigation under paragraph (g)
supplements the duty to ensure a flow of information between prosecutors,
investigators, and other law enforcement personnel established by Rule 412(f) and
is intended to minimize the risk of nondisclosure of exculpatory or mitigating
evidence. Prosecutors should also verify that they have obtained and properly
disclosed all relevant information from experts and laboratory personnel.

Making specific inquiries to determine the existence of material that must be
disclosed is especially important with respect to information that must be disclosed
under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). In Strickler v. Greene, 527 U.S. 263, 280-81, 144 L. Ed. 2d 286, 301-02, 119 S. Ct.
1936, 1948 (1999), the United States Supreme Court provided the following
summary of its decisions regarding the duty to disclose:

“In Brady, this Court held ‘that the suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.’ [Citation.] We have since held that the
duty to disclose such evidence is applicable even though there has been no
request by the accused [citation] and that the duty encompasses impeachment
evidence as well as exculpatory evidence [citation]. Such evidence is
material ‘if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been
different.’ [Citations.] Moreover, the rule encompasses evidence ‘known
only to police investigators and not to the prosecutor.’ [Citation.] In order to
comply with Brady, therefore, ‘the individual prosecutor has a duty to learn
of any favorable evidence known to the others acting on the government’s
behalf in this case, including the police.’ [Citation.]

These cases, together with earlier cases condemning the knowing use of
perjured testimony, illustrate the special role played by the American
prosecutor in the search for truth in criminal trials. Within the federal system,
for example, we have said that the United States Attorney is ‘the
representative not of an ordinary party to a controversy, but of a sovereignty
whose obligation to govern impartially is as compelling as its obligation to
govern at all; and whose interest, therefore, in a criminal prosecution is not
that it shall win a case, but that justice shall be done.’ “

Under Strickler, there can be no question that the responsibility to disclose
exculpatory or mitigating material extends beyond disclosure of information in the
prosecutor’s file. Regardless of the good faith of the prosecutor, failure to disclose
exculpatory or mitigating information in the possession of police or other law
enforcement personnel, laboratory personnel, and State experts may undermine
confidence in the outcome of a trial. The committee recognizes that conferring with
the ofttimes numerous persons involved in investigating and preparing a capital case
for trial may be burdensome; however, the committee found that making the effort
to do so is, in fact, the only prudent course in light of the scope of the duty to
disclose and the magnitude of the proceedings.

The reference to the “State’s Attorney or Attorney General” in paragraph (g) of
Rule 416 is intended to emphasize the importance of making proper pretrial
disclosures to the defense, but includes all counsel acting on behalf of the State’s
Attorney or the Attorney General. Consequently, paragraph (g) does not require the
personal appearance or action of the State’s Attorney or the Attorney General, and
certification may be provided by the attorney(s) prosecuting the case. Similarly,
paragraph (c) is not intended to require that notice of intent to seek or not seek the
death penalty must be provided personally by the State’s Attorney or the Attorney
General, though the actual responsibility to decide whether to seek the death penalty
will rarely, if ever, be delegated. On the other hand, “Attorney General or the duly
elected or appointed State’s Attorney of the county of venue,” as used in the last
sentence of paragraph (d), refers exclusively to the individuals who occupy the office
of Attorney General and the office of State’s Attorney of the county of venue.

Paragraph (h) requires certification of defense readiness for trial. Like the State’s
certification under paragraph (g), the defense certification of readiness for trial is to
be filed in open court, in the presence of the defendant. At the time of filing the
certificates required by paragraphs (g) and (h), the defendant should be allowed the
opportunity to voice any objections regarding pretrial matters such as the lack of
opportunity to speak to counsel, or other complaints, so these issues can be dealt with
in advance of trial.

(a) Statement of Purpose. This rule is promulgated to
produce uniformly sufficient information to allow a proper, well-informed
determination of the admissibility of DNA evidence and to insure that such
evidence is presented competently and intelligibly. The rule is designed to
provide a minimum standard for compliance concerning DNA evidence, and is not
intended to limit the production and discovery of material information.

(b) Obligation to Produce. In all felony prosecutions,
post-trial and post-conviction proceedings, the proponent of the DNA evidence,
whether prosecution or defense, shall provide or otherwise make available to the
adverse party all relevant materials, including, but not limited to the
following:

(i) Copies of the case file including all reports, memoranda, notes, phone
logs, contamination records, and data relating to the testing performed in the
case.

(ii) Copies of any autoradiographs, lumigraphs, DQ Alpha Polymarker strips,
PCR gel photographs and electropherogams, tabular data, electronic files and
other data needed for full evaluation of DNA profiles produced and an
opportunity to examine the originals, if requested.

(iii) Copies of any records reflecting compliance with quality control
guidelines or standards employed during the testing process utilized in the
case.

(v) Proficiency testing results, proof of continuing professional education,
current curriculum vitae and job description for examiners, or analysts and
technicians involved in the testing and analysis of DNA evidence in the case.

(vi) Reports explaining any discrepancies in the testing, observed defects or
laboratory errors in the particular case, as well as the reasons for those and
the effects thereof.

(vii) Copies of all chain of custody documents for each item of evidence
subjected to DNA testing.

(viii) A statement by the testing laboratory setting forth the method used to
calculate the statistical probabilities in the case.

(ix) Copies of the allele frequencies or database for each locus examined.

(x) A list of all commercial or in-house software programs used in the DNA
testing, including the name of the software program, manufacturer and version
used in the case.

(xi) Copies of all DNA laboratory audits relating to the laboratory
performing the particular tests.

Adopted March 1, 2001, effective immediately, except when in the opinion of
the trial, Appellate, or Supreme Court the application of the new rule in a
particular case pending at the time the rule becomes effective would not be
feasible or would work an injustice, in which case former procedures would
apply.

Committee Comments

Special Supreme Court Committee on Capital Cases

March 1, 2001

The standardized disclosures required by Rule 417 are intended to provide the
information necessary for a full understanding of DNA test results, and to aid
litigants and the courts in determining the admissibility of those results. The
rule requires disclosure of information that is, or should be, readily available
from any laboratory performing DNA testing. Standardized disclosure requirements
should also make responses to disclosure requests less burdensome for laboratory
personnel.

The disclosures required by the rule can be crucial in any trial in which the
discovery rules for criminal cases apply, and also in related post-trial and
post-conviction proceedings (including a proceeding on a motion for DNA testing
not available at the time of trial to establish actual innocence (725 ILCS
5/116-3)). Therefore, the rule requires production of information regarding DNA
testing by the proponent of DNA evidence in any felony trial, and in all related
post-trial or post-conviction proceedings. While the disclosures required under
the rule encompass the technologies presently utilized (restriction fragment
length polymorphism, polymerase chain reaction, short tandem repeats, etc.),
production is not limited to those techniques. Because the rule provides no
limitation upon the specific information or materials to be provided, it is
designed to encompass future techniques that may be developed in the testing of
DNA evidence.

An accused shall not be placed in restraint of any form unless there is a manifest need for restraint to protect the security of the court, the proceedings, or to prevent escape. Persons charged with a criminal offense are presumed innocent until otherwise proven guilty and are entitled to participate in their defense as free persons before the jury or bench. Any deviation from this right shall be based on evidence specifically considered by the trial court on a case-by-case basis. The determination of whether to impose a physical restraint shall be limited to trial proceedings in which the defendant’s innocence or guilt is to be determined, and does not apply to bond hearings or other instances where the defendant may be required to appear before the court prior to a trial being commenced. Once the trial judge becomes aware of restraints, prior to allowing the defendant to appear before the jury, he or she shall conduct a separate hearing on the record to investigate the need for such restraints. At such hearing, the trial court shall consider and shall make specific findings as to:

(1) the seriousness of the present charge against the defendant;

(2) defendant’s temperament and character known to the trial court either by observation or by the testimony of witnesses;

(3) defendant’s age and physical attributes;

(4) defendant’s past criminal record and, more particularly, whether such record contains crimes of violence;

(6) evidence of any threats made by defendant to harm others, cause a disturbance, or to be self-destructive;

(7) evidence of any risk of mob violence or of attempted revenge by others;

(8) evidence of any possibility of any attempt to rescue the defendant by others;

(9) size and mood of the audience;

(10) physical security of the courtroom, including the number of entrances and exits, the number of guards necessary to provide security, and the adequacy and availability of alternative security arrangements.

After allowing the defendant to be heard and after making specific findings, the trial judge shall balance these findings and impose the use of a restraint only where the need for restraint outweighs the defendant’s right to be free from restraint.

(a) The court shall conduct voir dire examination of prospective jurors by putting
to them questions it thinks appropriate, touching upon their qualifications to serve as
jurors in the case at trial. The court may permit the parties to submit additional
questions to it for further inquiry if it thinks they are appropriate and shall permit the
parties to supplement the examination by such direct inquiry as the court deems
proper for a reasonable period of time depending upon the length of examination by
the court, the complexity of the case, and the nature of the charges. Questions shall
not directly or indirectly concern matters of law or instructions. The court shall
acquaint prospective jurors with the general duties and responsibilities of jurors.

(b) The court shall ask each potential juror, individually or in a group, whether
that juror understands and accepts the following principles: (1) that the defendant is
presumed innocent of the charge(s) against him or her; (2) that before a defendant can
be convicted the State must prove the defendant guilty beyond a reasonable doubt;
(3) that the defendant is not required to offer any evidence on his or her own behalf;
and (4) that the defendant’s failure to testifyif a defendant does not testify it cannot
be held against him or her; however, no inquiry of a prospective juror shall be made
into the defendant’s failuredecision not to testify when the defendant objects.

The court’s method of inquiry shall provide each juror an opportunity to respond
to specific questions concerning the principles set out in this section.

The new language is intended to ensure compliance with the requirements of People v. Zehr, 103 Ill. 2d 472 (1984). It seeks to end the practice where the judge makes a broad statement of the applicable law followed by a general question concerning the juror's willingness to follow the law.

(a) Impaneling Juries. In criminal cases the parties shall pass upon and accept
the jury in panels of four, commencing with the State, unless the court, in its
discretion, directs otherwise, and alternate jurors shall be passed upon separately.

(b) Names and Addresses of Prospective Jurors. Upon request, the parties
shall be furnished with a list of prospective jurors with their addresses, if known.

(c) Challenging Prospective Jurors for Cause. Each party may challenge jurors
for cause. If a prospective juror has a physical impairment, the court shall consider
such prospective juror’s ability to perceive and appreciate the evidence when
considering a challenge for cause.

(d) Peremptory Challenges. A defendant tried alone shall be allowed 14
peremptory challenges in a capital case, 7seven peremptory challenges in a case in
which the punishment may be imprisonment in the penitentiary, and 5five in all
other cases; except that, in a single trial of more than one defendant, each defendant
shall be allowed 8 peremptory challenges in a capital case, 5five peremptory
challenges in a case in which the punishment may be imprisonment in the
penitentiary, and 3three in all other cases. If several charges against a defendant or
defendants are consolidated for trial, each defendant shall be allowed peremptory
challenges upon one charge only, which single charge shall be the charge against that
defendant authorizing the greatest maximum penalty. The State shall be allowed the
same number of peremptory challenges as all of the defendants.

(e) Selection of Alternate Jurors. After the jury is impaneled and sworn the
court may direct the selection of alternate jurors, who shall take the same oath as the
regular jurors. Each party shall have one additional peremptory challenge for each
alternate juror. If before the final submission of a cause a member of the jury dies or
is discharged he shall be replaced by an alternate juror in the order of election.

Rule 436. Separation and Sequestration of Jury in Criminal Cases;
Admonition by Court.

(a) In criminal cases, either before or after submission of the cause
to the jury for determination, the trial court may, in its discretion, keep
the jury together in the charge of an officer of the court, or the court
may allow the jurors to separate temporarily outside the presence of a
court officer, overnight, on weekends, on holidays, or in emergencies.

(b) The jurors shall, whether permitted to separate or kept in
charge of officers, be admonished by the trial court that it is their duty
(1) not to converse with anyone else on any subject connected with the
trial until they are discharged; (2) not to knowingly read or listen to
outside comments or news accounts of the procedure until they are
discharged; (3) not to discuss among themselves any subject connected
with the trial, or form or express any opinion on the cause until it is
submitted to them for deliberation; and (4) not to view the place where
the offense was allegedly committed.

Adopted May 20, 1997, effective July 1, 1997.

Committee Comments

This proposed rule is intended to allow jurors to go home for an evening,
weekend, holiday, or emergency and dispense with the need to accommodate
the jurors in a hotel overnight, even if the cause has been submitted to them for
final deliberation. The Code of Criminal Procedure presently requires "an
officer of the court *** to keep [jurors] together and prevent conversation
between the jurors and others" (except interpreters), after final submission of
the cause to the jury for determination. 725 ILCS 5/115--4. This proposed rule
provides that in appropriate cases, jurors may separate temporarily after being
admonished with regard to their duties. It does away with the blanket
requirement that they be sequestered and guarded.

(a) Use of IPI Criminal Instructions; Requirements of Other Instructions.Whenever Illinois Pattern Jury Instructions, Criminal (4th ed. 2000) (IPI Criminal
4th), contains an instruction applicable in a criminal case, giving due consideration
to the facts and the governing law, and the court determines that the jury should be
instructed on the subject, the IPI Criminal 4th instruction shall be used, unless the
court determines that it does not accurately state the law. The most current version
of the IPI Criminal instructions is maintained on the Supreme Court website. Whenever IPI Criminal 4th does not contain an instruction on a subject on which the
court determines that the jury should be instructed, the instruction given on that
subject should be simple, brief, impartial, and free from argument.

(b) Court’s Instructions. At any time before or during the trial, the court may
direct counsel to prepare designated instructions. Counsel shall comply with the
direction, and copies of instructions so prepared shall be marked “Court’s
Instructions.” Counsel may object at the conference on instructions to any instruction
prepared at the court’s direction, regardless of who prepared it, and the court shall
rule on these objections as well as objections to other instructions. The grounds of
the objections shall be particularly specified.

(c) Section 2-1107 of the Code of Civil Procedure to Govern. Except as
otherwise provided in these rules, instructions in criminal cases shall be tendered,
settled, and given in accordance with section 2-1107 of the Code of Civil Procedure,
but substantial defects are not waived by failure to make timely objections thereto
if the interests of justice require. The court shall instruct the jury after the arguments
are completed, or, in its discretion, at the close of all the evidence.

(d) Procedure. The court shall be provided an original and a copy of each
instruction, and a copy shall be delivered to each opposing counsel. In addition to
numbering the copies and indicating who tendered them, as required by section 2-1107 of the Code of Civil Procedure, the copy shall contain a notation substantially
as follows:

“IPI Criminal 4th No. _____” or “IPI Criminal No. _____ Modified”

or “Not in IPI Criminal”

as the case may be. All objections made at the conference and the rulings thereon
shall be shown in the report of proceedings.

(e) Instructions Before Opening Statements. After the jury is selected and
before opening statements, the court may orally instruct the jury as follows:

(i) On cautionary or preliminary matters, including, but not limited to, the
burden of proof, the believability of witnesses, and the receipt of evidence for a
limited purpose.

(ii) On the issue of substantive law applicable to the case, including, but not
limited to, the elements of the offense. When requested by the defendant, the
court may instruct the jury on the elements of an affirmative defense. Nothing
in this rule is intended to eliminate the giving of written instructions at the close
of the trial in accord with paragraph (c).

(f) Instructions During Trial. Nothing in the rule is intended to restrict the
court’s authority to give any appropriate instruction during the course of the trial.

(g) Proceedings When an Enhanced Sentence is Sought. When the State
intends, for the purpose of sentencing, to rely on one or more sentencing
enhancement factors which are subject to the notice and proof requirements of
section lll-3(c-5) of the Code of Criminal Procedure, the court may, within its
discretion, conduct a unitary trial through verdict on the issue of guilt and on the
issue of whether a sentencing enhancement factor exists. The court may also, within
its discretion, upon motion of a party, conduct a bifurcated trial. In deciding whether
to conduct such a bifurcated trial, the court must first hold a pretrial hearing to
determine if proof of the sentencing enhancement factor is not relevant to the
question of guilt or if undue prejudice outweighs the factor’s probative value. Such
bifurcated trial shall be conducted subject to the following:

(1) The court shall first conduct a trial through verdict on the issue of guilt
under the procedures applicable to trials in other cases.

(2) If a guilty verdict is rendered, the court shall then conduct a separate
proceeding before the same jury, or before the court if a jury was waived at trial
or is waived for purposes of the separate proceeding. This separate proceeding
shall be confined to the issue of whether the sentencing enhancement factor
exists. The order in which the parties may present evidence and argument and the
rules governing admission of evidence shall be the same as at trial, with the
burden remaining on the State to prove the factor beyond a reasonable doubt.
After the evidence is closed, the submission and giving of instructions shall
proceed in accordance with paragraphs (a), (b), (c) and (d) of this rule.

(3) The court may enter a directed verdict or judgment notwithstanding the
verdict respecting any fact at issue in the separate proceeding.

In response to the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S.
466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), the Illinois legislature adopted Illinois
Code of Criminal Procedure section 111-3(c-5) (725 ILCS 5/111-3(c-5)), which sets
notice and proof requirements for sentencing enhancement factors in nondeath penalty
cases. However, this section does not specify how the sentencing enhancements are to
be tried when the trier of fact is a jury. Rule 451(a) provides a basis for trial courts to
utilize special interrogatories when the sentencing enhancement factor is to be proven
during a unitary trial.

The Supreme Court Committee on Jury Instructions in Criminal Cases
recommended the adoption of a rule which would provide that bifurcated trials as well
as unitary trials are authorized, and that trial courts have discretion in deciding which
to conduct.

Because bifurcating a trial generally causes additional inconvenience to the jury,
the witnesses, and/or the parties, and causes additional cost to the parties and/or the
taxpayers, paragraph (g) makes unitary trials the presumptive option. Before a court
orders a bifurcated trial, the court must find that having a unitary trial might cause
prejudice and that this risk outweighs the additional difficulties associated with a
bifurcated trial. Paragraph (g) does not apply when the court serves as trier of fact on
sentencing enhancement factors. Whether to bifurcate in that circumstance involves
different considerations.

Committee Comments

This amendment gives the trial court the option of formally instructing the
jury at the close of the evidence prior to closing arguments. It also expressly
authorizes the trial court to orally instruct the jury prior to opening statements
concerning cautionary and preliminary matters and on key issues of substantive
law, such as the elements of the offense or of an affirmative defense. The
amendments also recognize that it may become necessary for the trial court to
give appropriate instructions during the course of the trial to guide the jurors
in their consideration of the evidence.

At the time of
sentencing in a criminal case, the court shall enter a written order imposing the
sentence and all applicable fines, fees, assessments, and costs against the
defendant and specifying applicable credits. The State shall draft such order
and present the order for review by defendant or, if defendant is represented,
by defense counsel, before submitting it to the court.

If a petition filed under the provisions of article 122 of the Code of
Criminal Procedure of 1963, dealing with post-conviction hearings,
alleges that the petitioner is unable to pay the costs of the proceeding,
the trial court may order that the petitioner be permitted to proceed as
a poor person and order a transcript of the proceedings resulting in the
conviction delivered to petitioner in accordance with paragraph (b) of
Rule 607.

Committee Comments

This is paragraph (1) of former Rule 27--1 with necessary minor changes
but no changes of substance.

(a) In criminal
cases, the circuit court retains jurisdiction to correct the following
sentencing errors at any time following judgment and after notice to the
parties, including during the pendency of an appeal, on the court’s own motion,
or on motion of any party:

(1)
Errors in the imposition or calculation of fines, fees, assessments, or costs;

(2)
Errors in the application of per diem credit against fines;

(3)
Errors in the calculation of presentence custody credit; and

(4)
Clerical errors in the written sentencing order or other part of the record
resulting in a discrepancy between the record and the actual judgment of the
court.

(b) Where a
circuit court’s judgment pursuant to this Rrule is entered more than 30 days after the final judgment, the judgment constitutes
a final judgment on a justiciable matter and is subject to appeal in accordance with Supreme Court Rule 303.

(c) No appeal may
be taken by a party from a judgment of conviction on the ground of any
sentencing error specified above unless such alleged error has first been
raised in the circuit court. When a post-judgment motion has been filed by a
party pursuant to this rule, any claim of error not raised in that motion shall
be deemed forfeited.

(d) If a motion
is filed or judgment pursuant to this rule is entered after a prior notice of
appeal has been filed, and said appeal remains pending, the pending appeal
shall not be stayed. Any appeal from a judgment entered pursuant to this rule
shall be consolidated with the pending appeal.

(e) In all
criminal cases pending on appeal as of March 1, 2019, or appeals filed
thereafter in which a party has attempted to raise sentencing errors covered by
this rule for the first time on appeal, the reviewing court shall remand to the
circuit court to allow the party to file a motion pursuant to this rule.